Evans v. Pigg , 28 Tex. 586 ( 1866 )

Coke, J.

—This case was returnable to the October term, 1859, of this court, and the record was filed on the 10th day of October of that year. At that term the case was continued by consent.

On the 12th day of December, 1860, a motion was filed by the appellee to dismiss, because the appeal bond does not appear to have'been approved or filed by the clerk of the District Court of Parker county. This motion, not having been made at the return term, is obnoxious to the rule laid down by this court in Horton v. Bodine, 19 Tex., 283, where, m reference to motions to dismiss for defects in the appeal bond, it is said, “ But for the future the rule of practice shall be, that the motion shall be made at the return term of the appeal, provided the cause be docketed at or before the time allotted for the trial of appeals from the district;” which rule has been constantly adhered to since its announcement, and may be regarded as one of the settled rules of practice of this court. Questions which involve the jurisdiction of the court will of course be considered at any time that they may come to our notice, however great the lapse of time may have been after docketing the cause in this court, and whether raised by motion to dismiss or brought to our attention in any other way. But it is not.believed that any question of jurisdiction is involved in this motion. The appeal bond in its .terms conforms to the requirements of the statute. The judgment appealed from was rendered July 5, 1859, and three days after (July 8) the bond was executed and bears date. The fact that this bond is imbodied in this transcript affords presumptive evidence that it was approved and accepted by the clerk. The mere fact of his' failure to indorse his approval and the date of its filing on the hond is not believed to be destructive of the effect of the bond, when it sufficiently appears by other evidence that the clerk has in fact approved it. The date of the execution of the bond, in the absence of affidavits or other proof to the contrary, may well be presumed to be the date of its approval and deposit among the papers of the case, thus showing the appeal to have been perfected within the required time.

The motion to dismiss is overruled.

Proceeding to a consideration of the questions presented by the assignment of errors, we are of opinion that there was no error in the admission of the testimony of the witness Alston. His testimony was introduced by the defendant for the purpose of defeating a recovery of the cattle alleged to have been sold to plaintiff by the witness as agent of Scarborough, and his testimony positively negatives the alleged sale. If the object for which his evidence is introduced is accomplished, Alston’s debt to Evans, which is alleged to have been paid by that sale, is revived. He, therefore, was testifying against his interest, and the objection that he was incompetent, on account of interest, was consequently not well taken.

But there was manifest error in overruling the objection to the deposition of the witness Scarborough on the ground of interest, and in admitting it as evidence to the jury. His interest originally is admitted by the defendant, but it is contended that his competency is restored by the release executed 31st May, 1858.

This release is indorsed on a bill of sale of the cattle, which Scarborough executed to the defendant on the 15th October, 1855. The bill of sale, with this indorsement, was filed in the papers of this case on the 31st May, 1858.

There is no evidenee in the record of a delivery, either actual or constructive, of this release to the witness, Scarborough. It is believed that the defendant intended the filing of it in the papers of the case as a delivery.

The terms of the release are sufficiently broad to release Scarborough from all liability over, and consequently to remove the objection of interest, and if Scarborough was shown by anything in the record to have had notice of its execution before his deposition was taken, or if any circumstances were proved from which such notice might reasonably be inferred, the filing of the release in court might be held as sufficient delivery. What amounts to a delivery of a release, for the purpose of restoring the competency of a witness, must be determined with reference to the purpose for which the instrument is executed. The objection of interest proceeds on the presumption that it may bias the mind of the witness, which objection it is the purpose of the release to remove, and this is not done unless the witness is notified that he has no interest before he deposes. (1 Greenl. on Ev., § 429; 4 Hill, 255.)

Any delivery of a release which falls short of giving the witness notice of its execution is, we think, ‘insufficient to remove the objection of interest and restore the competency of the witness. (Stall v. Catskill Bank, 18 Wend., 473.)

There is no proof in the record that Scarborough has ever yet heard of this release, nor are there any circumstances in proof from which such notice may be inferred, unless the isolated fact that it is on file among the papers of this case in the district clerk’s office of Parker county is such evidence.

Whatever the presumptions from that fact might be if Scarborough lived in Parker county, we are very clear that, living as he does in a distant county, and not having been proved to have been in Parker county since the execution of the release, he cannot be presumed from that circumstance alone to have had notice of its execution.

' The testimony of this witness was direct and important on the issue joined in this case; the verdict is in accordance with it; and while we are of opinion that the plaintiff failed to make out his case by proof, we cannot undertake to say that the jury were not influenced by this testimony thus illegally admitted. The judgment must therefore be reversed.

It is not deemed necessary to notice the other assignments of error, further than to say, (as on another trial defendant may show that Scarborough was notified of the release before he deposed,) that the other objections to his testimony, and to the manner of taking and returning his deposition, are not well taken.

The judgment is reversed, and the cause remanded for further proceedings.

Reversed and remanded.